Explainer: Is it illegal for Trump or Congress to name the impeachment whistleblower?

[November 08, 2019]  By Jan Wolfe

(Reuters) - U.S. President Donald Trump and some Republican lawmakers are pushing for political and media allies to reveal the name of the whistleblower who prompted an impeachment inquiry.

"The whistleblower should be revealed because the whistleblower gave false information," Trump told reporters on Sunday.

Rand Paul, a Republican senator from Kentucky, on Tuesday tweeted a link to an article from a right-wing news outlet that claims to have identified the whistleblower. On Wednesday, the president's son, Donald Trump Jr., tweeted a link to an article including the same name.

Democrats, some Republicans, and members of the U.S. intelligence community have strongly objected to the effort, calling it everything from inappropriate to illegal.

Here is what U.S. law says about how whistleblowers in the intelligence community should file complaints, and the punishments for retaliation and identification.

WHAT STEPS DID THE WHISTLEBLOWER TAKE?

On Aug. 12, the whistleblower lodged a complaint with an internal government watchdog about a July 25 phone call between Trump and Ukraine's new president Volodymyr Zelenskiy. During that call, Trump pressed his Ukrainian counterpart to investigate a political rival, former Vice President Joe Biden, and his son Hunter Biden.

The whistleblower filed the report with Intelligence Community Inspector General Michael Atkinson, as required under the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA https://www.govinfo.gov/content/pkg/
PLAW-105publ272/html/PLAW-105publ272.htm), which lays out procedures for reporting allegations of fraud, waste, or violations of law.

Atkinson determined the complaint was credible and involved an urgent concern, and shared it with Acting Director of National Intelligence Joseph Maguire on Aug. 26, as required under the ICWPA.

The ICWPA requires the director to report any complaint to Congressional intelligence committees within seven days. Maguire consulted with the White House, and the report was sent to prescribed members of Congress on Sept. 25.

Maguire found the complaint did not meet the legal definition of "urgent concern." But it has since prompted a House of Representatives investigation into whether Trump committed "high crimes and misdemeanors" warranting impeachment.

John Cohen, a former official in the U.S. Department of Homeland Security, said the whistleblower followed the procedures laid out in the ICWPA, and that much of the whistleblower's complaint has been corroborated.

WHAT DOES U.S. LAW SAY ABOUT REVEALING A WHISTLEBLOWER'S NAME?

There is only one provision in the ICWPA that deals specifically with whistleblower anonymity, said Kel McClanahan, a national security lawyer in Washington.

That provision says the inspector general should not disclose the whistleblower's identity without their consent, unless the watchdog determines that "such disclosure is unavoidable during the course of the investigation."

Once the complaint is out of the inspector general's hands the law does little to guarantee the whistleblower anonymity, said McClanahan, the executive director of National Security Counselors, a public interest law firm.

"It is presumed that people would want to not publicly expose a whistleblower because of all the public policy reasons for not doing so," said McClanahan.

Members of the House Permanent Select Committee on Intelligence who reveal the whistleblower's identity could violate that committee's rules and face censure from fellow lawmakers, McClanahan said. Censure is largely symbolic, however, and does not remove a House member from office.

President Donald Trump holds a campaign rally in Monroe, Louisiana, U.S., November 6, 2019. REUTERS/Leah Millis

The whistleblower's lawyers said in a statement on Wednesday that efforts to identify their client "will place that individual and their family at risk of serious harm" and will deter future whistleblowers.

WHAT OTHER PROTECTIONS DOES U.S. LAW PROVIDE TO INTELLIGENCE COMMUNITY WHISTLEBLOWERS?

A 2012 directive  from former President Barack Obama, formally put into law in 2014, supplemented the ICWPA to protect intelligence community whistleblowers from some forms of retaliation, including termination or security clearance revocation, if they follow rules for making disclosures.

There are limits to the law's protections, however. Unlike other whistleblowers in the federal government, intelligence community whistleblowers are not permitted to file lawsuits over any perceived retaliation. Instead, they must pursue relief through an internal review process.

Notably, the 2014 law ultimately puts the president in charge of enforcing the whistleblower protections.

Cohen, now a professor at Georgetown University, said the law was primarily intended to protect whistleblowers from workplace retaliation by colleagues and supervisors.

"It does not necessarily prevent disclosure of the identity of the whistleblower, which may subject the individual to retaliation from others," Cohen said.

WHAT SECURITY PROTECTIONS DOES THE U.S. FEDERAL GOVERNMENT PROVIDE A INTELLIGENCE COMMUNITY EMPLOYEE WHO IS TARGETED FOR WHISTLEBLOWING?

Obama's directive gave intelligence community whistleblowers some protections against workplace retaliation, but does not provide them with security guards or similar protections.

House members have considered "extreme measures" to protect the whistleblower's identity in the event the individual testifies, including disguising their face and voice, CNN reported.

Lawyers for the whistleblower say they have received death threats after conservative media outlets have floated possible names.

IS THERE ARE ANY HISTORICAL PRECEDENT FOR THIS MOMENT?

Not really. Many government employees and contractors who have gone public with allegations of wrongdoing went directly to the press.

"I do not think I have ever seen a president, his allies in Congress and even his family work this hard to publicly disclose the name of a whistleblower who has followed the law," said Cohen.

"Its disturbing - particularly in light of the fact that the concerns raised by the whistleblower have for the most part been validated by witnesses with first hand knowledge," Cohen said.

(This story corrects third paragraph to show Paul is from Kentucky, not Kansas)

(Reporting by Jan Wolfe; Editing by Heather Timmons and Daniel Wallis)

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